JUDICIAL PROTECTION IN THE EU - FGV DIREITO...

I THE PRINCIPLE OF “EFFECTIVE JUDICIAL PROTECTION AND CONTROL”

1 RIGHTS, REMEDIES AND PROCEDURES

“Ubi ius – ibi remedium” – where there is a right there is a remedy.1 This importantprinciple of any government of law is true for Community law, too. WhereCommunity law grants rights to a person as Union or market citizen, it must assurethat these rights can be effectively protected. This is due to its direct effect, espe-cially in the area of fundamental freedoms and competition.

111:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

RESUMOO ARTIGO ANALISA A CONVENÇÃO DE BRUXELAS DE 1968, SEU

PROPÓSITO E ALGUMAS DE SUAS FALHAS, BEM COMO O

SURGIMENTO DA REGULAÇÃO 44/2001, QUE VISA A

COMPATIBILIZAR AS LEIS APLICÁVEIS AOS ESTADOS MEMBROS EM

CASOS DE CONFLITO DE LEIS OU JURISDIÇÕES. AFIRMA QUE A

PROTEÇÃO JUDICIAL NA UNIÃO EUROPÉIA DEVE ABRANGER O

ÂMBITO DA “COMMUNITY LAW”. PELO PRINCÍPIO DA “EFETIVA

PROTEÇÃO JUDICIAL E CONTROLE”, A CORTE EUROPÉIA DE JUSTIÇA

ATUA POR MECANISMOS DE INTERVENÇÃO INDIRETA, CALCADOS EM

PRINCÍPIOS COMO EFETIVIDADE E EQUIVALÊNCIA. ALÉM DISSO,ANALISA O PROCEDIMENTO DE “REFERENCE”, CONTRASTANDO SEU

OBJETIVO INICIAL E SEU FUNCIONAMENTO ATUAL E O ACESSO

LIMITADO DOS INDIVÍDUOS À JURISDIÇÃO EUROPÉIA.

PALAVRAS-CHAVEPROTEÇÃO JUDICIAL / UNIÃO EUROPÉIA / DIREITO COMUNITÁRIO

/ CONVENÇÃO DE BRUXELAS DE 1968 / PROCEDIMENTO DE

REFERENCE / ACESSO DIRETO À JURISDIÇÃO LIMITADO

Norbert Reich

JUDICIAL PROTECTION IN THE EU

ABSTRACTTHIS ARTICLE ANALYSES BRUSSELS CONVENTION OF 1968, ITS

PURPOSES AND SOME OF ITS FLAWS, AS WELL AS THE EMERGING

REGULATION 44/2001, THAT INTENTS TO PROMOTE THE

COMPATIBILITY OF THE RULES APPLICABLE IN THE MEMBER

STATES CONCERNING THE CONFLICTS OF LAWS AND OF JURISDICTION.IT STATES THAT JUDICIAL PROTECTION IN THE EUROPEAN UNION

SHOULD ALSO EMBRACE COMMUNITY LAW. BY THE PRINCIPLE OF

“EFFECTIVE JUDICIAL PROTECTION AND CONTROL”, THE EUROPEAN

COURT OF JUSTICE ACTS THROUGH MECHANISMS OF DIRECT

INTERVENTION BASED ON PRINCIPLES AS EFFECTIVENESS AND

EQUIVALENCE. MOREOVER, IT ANALYSES THE REFERENCE PROCEDURE,CONTRASTING ITS ORIGINAL OBJECTIVE AND ITS NEW FUNCTION AND

THE LIMITED ACCESS OF INDIVIDUALS TO EUROPEAN JURISDICTIONS.

KEYWORDSJUDICIAL PROTECTION / EUROPEAN UNION / COMMUNITY LAW /BRUSSELS CONVENTION OF 1968 / REFERENCE PROCEDURE /LIMITED DIRECT ACCESS TO JURISDICTION

PROTEÇÃO JUDICIAL NA UE

05_REV2_p111_136.qxd 11/16/05 21:32 11

JUDICIAL PROTECTION IN THE EU: NORBERT REICH112

The ECJ developed this principle of “effective judicial control” or, more broad-ly, effective judicial protection in its early case law, and has continuously refined andspecified it.2 Many cases are linked to the effet utile of Community law, especially itsfundamental freedoms. As the Court said in Heylens:3

Since free access to employment is a fundamental right which the Treatyconfers individually on each worker in the Community, the existence of a remedy of a judicial nature against any decision of a national authorityrefusing the benefit of that right is essential in order to secure for theindividual effective protection for his right…. Effective judicial review, whichmust be able to cover the legality of the reasons for the contested decision,presupposes in general that the court to which the matter is referred mayrequire the competent authority to notify its reasons… (paras 14-15)

The guarantee of these freedoms consists of both a substantive and a remedialand procedural element. Direct effect is voided of any sense if the beneficiary can-not enforce it by effective remedies, or if procedures necessary for enforcementare unavailable. As a consequence, the Court developed the principles of effective-ness and equivalence:4

• Effectiveness means that a remedy should not only compensate the victim for a potential loss of or injury to a right, but also deter potential wrongdoers from vio-lating it in the first place.

• Equivalence means that the protection of Community law rights should beequivalent in strength and scope to the protection of similar rights granted undernational law. In other terms: nobody should suffer from a lower standard of protec-tion for the simple reason that the right to be protected has its origin in Communityrather than in national law.

Case law has also based these principles on Art. 6 of the European Human RightsConvention of 1950 (ECHR). Although this does not have direct effect uponCommunity law, it must at least be respected as an expression of the common con-stitutional heritage of the Member States. In Johnston,5 the Court said:

The requirement of judicial control …. reflects a general principle of law which underlies the constitutional traditions common to the Member States.That principle is also laid down in Art. 6 and 13 of the European Conventionfor the Protection of Human Rights and Fundamental Freedoms of 4 November1950. As the European Parliament, Council and Commission recognized in theirJoint Declaration of 5 April 1977 … and as the Court has recognized in itsdecisions, the principles on which that Convention is based must be taken intoconsideration in Community law (para 18).

05_REV2_p111_136.qxd 11/16/05 21:32 Page 112

113:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

Art. 6 (2) EU transferred this case law into Union law. A further step was takenby Art. 47 of the European Charter of Fundamental Rights (EChFR), now Art. II-107 Draft Constitution, which reads:

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal ....

Many Community law directives, especially those concerned with preventing dis-crimination6 and those protecting legitimate expectations7, contain detailed obligationsde moyens on effective legal protection.These include rights to compensation, collectiveinterest actions, access to tribunals of law, and the like.Although earlier case law of theECJ stressed that “the Treaty … was not intended to create new remedies in the nation-al courts to ensure the observance of Community law other than already laid down bynational law,”8 the notion of practical possibility was later replaced by requirements ofadequacy and effectiveness. If Member State law fails to acknowledge the appropriateremedies, courts are obliged to provide for them, as the Court said in Borelli9:

Accordingly, it is for the national courts …. to rule on the lawfulness of thenational measure at issue on the same terms on which they review any definitivemeasure adopted by the same national authority which is capable of adverselyaffecting third parties and, consequently, to regard an action brought for thatpurpose as admissible even if the domestic rules of procedure do not providefor this in such a case (para 13).

Clearly, these general principles and broad obligations de moyens are of little helpto the individual who complains about an injury to their Community law rights. Asystem of effective protection needs to answer a number of questions.These have tobe resolved by the Court as well as by Member State jurisdictions:

• What are the effective remedies to be chosen? Will they consist of granting aninjunction, in allowing for compensation, in ordering restitution?10 Are they limit-ed to traditional civil law remedies, or do they do require action under administra-tive or even criminal law?

• What are the procedures to be chosen for effective enforcement of remediesattached to a violation of Community law rights?

• Which injuries should be treated by the Community, and which by nationaljurisdictions? How can they be linked together? How does the duty of co-operation under Art. 10 EC actually work?

• How can the principle of effective judicial protection as a right underCommunity law be harmonized with the "procedural autonomy" of Member States?The latter has been recognized by the Court in several judgments, for example with

05_REV2_p111_136.qxd 11/16/05 21:32 Page 113


regard to the characteristics of civil litigation, where it is up the parties themselvesto present evidence and defend their case.11

2 DISTRIBUTION OF RESPONSIBILITIES

In order to understand the Community system of protection of rights, it is useful tofollow the distinction developed by the former AG Van Gerven.12 According to him,this protection works in several ways:

• If a Community law right is violated, the victim should have an effectiveremedy against the perpetrator, be it a private person, a Member State or one ofits bodies, or the Community institutions themselves. The basic contents of theremedy are shaped by Community law. Unreasonable restrictions on remedies, asfor example by unforeseeable limitation periods,13. or a procedural rule whichprohibits the national court, on expiry of a limitation period, from finding of itsown motion or following a plea raised by a consumer that a term sought to beenforced by a seller or supplier is unfair,14 must be disapplied by national courtsOn the other hand, the Court has been rather generous towards Member Stateswhen they impose time-limits or other procedural restriction on bringing claimsfor violation of Community rights, and has left its appropriateness to be decidedby the national court.15

• These Community-specific remedies should be enforced by legal means, inthe very end if necessary by courts of law. Member States, not the Community,have to establish a system of effective procedures. Their procedural autonomy issupplemented by the effet utile of Community law, as the Court has clearly shownin Borelli.

• Community involvement in procedures – a matter for Member States –becomes deeper in cross-border conflicts of a civil and commercial law nature (II) andin cases involving the interpretation and validity of Community law measures (III).

• Procedures allowing direct access to Community jurisdictions – the Court ofFirst Instance (CFI) and, upon appeal, the Court of Justice (ECJ) - are only avail-able in very limited cases, namely where an individual is directly and individual-ly concerned by a Community measure (sub IV).

3 PROTECTION AGAINST JURISDICTION CLAUSES IN PRE-FORMULATED CONTRACTS

– LEGAL AID

Jurisdiction clauses are quite common in standard form contracts, especially thoseconcluded with consumers. They usually impose on the weaker party a jurisdictionaway from its place of residence and thereby unilaterally favor the other side, most-ly business. EC law has two instruments to cope with them:

• In cross-border litigation, Reg. 44/2001 is applicable and will be studied in thenext section.

05_REV2_p111_136.qxd 11/16/05 21:32 Page 114

115:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

• In internal relations, this depends on the “procedural autonomy” of theMember State discussed above, although this is limited by Dir. 93/13/EC of 5.4.1993 on “Unfair Terms in Consumer Contracts”.16

The latter problem was raised in Oceano.17 Several Spanish clients were sued bya book-club company at its place of business but not at their residence, because ajurisdiction clause was inserted in the standard contract form. The Spanish judgewas not sure whether he could raise the issue of his territorial incompetence ex offi-cio because he regarded the jurisdiction clause to be unfair under Art. 3 (2) of Dir.93/13 and Nr. 1 lit q) of the so called indicative list of the Annex.The Court gave asomewhat unclear answer:

a jurisdiction clause must be regarded as unfair within the meaning of Art. 3 of the Dir. (93/13) in so far as18 it causes contrary to the requirement of goodfaith, a significant imbalance in the parties rights and obligations existing underthe contract to the detriment of the consumer.

The Court insisted on the protective ambit of Dir. 93/13. This means that thejudge should be able to raise ex officio the potential unfairness of the jurisdictionclause, and that he should apply and interpret his national law in conformity withCommunity law. However, the Court did not completely condemn the jurisdictionclause, but left this to the national judge, depending on the circumstances of thecase.There is, though, great likelihood that such unilateral clauses are unfair becausethey contradict the principle of effective judicial protection.

Finally, in 2002, Council Directive 2002/8/EC of 27 January 2003 concerninglegal aid in cross-border litigation has been adopted.19 It contains minimum stan-dards of legal aid in cross border litigation which must be put on a equal footingwith national litigation.

II CROSS-BORDER JUDICIAL PROTECTION: BRUSSELS CONVENTION ANDREGULATION 44/2001

1. THE BRUSSELS CONVENTION OF 1968 AS AMENDED

Judicial protection presumes that a party subject to a dispute should be able to bringlegal proceedings in a court of law (or other body responsible for resolving legal dis-putes), knowing that the decision taken by such a body will be recognized andenforced. Sometimes this should be done in a State other than the State where theclaimant is established or domiciled.Therefore, questions on jurisdiction, recognitionand enforcement of judgments throughout the Community are crucial to ensureeffective protection of rights derived from Community law.These also form part of

05_REV2_p111_136.qxd 11/16/05 21:32 Page 115


an effective internal market presupposing a “free flow of judgments”, at least in civiland commercial matters.

Within the EU, the above-mentioned questions have been regulated primarily bythe 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments inCivil and Commercial Matters20. The original EEC Treaty was mostly concernedwith the establishment of the Common Market and contained virtually nothingabout private international law and jurisdiction, except for Art. 220 EEC (now Art.293 EC) stating that:

Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals… the simplification of formalities governing the reciprocal recognition andenforcement of judgments of courts or tribunals and of arbitration awards.

The only instrument that could be adopted under these provisions was an inter-national treaty. Therefore, the Brussels Convention was adopted as an internationallaw instrument and ratified by all Member States. Many legal scholars characterizedthe Convention as a success in the process of European integration:

[It was] a well-known success. It went even further than the relevant Treatyprovision, because it established a system of direct rules for the jurisdiction of European Member state courts in international cases and did not simplyprovide for a ‘simplification of formalities governing the reciprocal recognitionand enforcement of judgments’ – thus the expert drafters of the Conventionwere forerunning the diplomatic drafters of Art. 65 EC by almost 30 years.21

As stated above, the Convention provides a set of uniform and directly applica-ble rules. These form part of the law of every State – member to the Convention.The courts of those States are under an obligation to apply these rules while con-sidering issues on jurisdiction. Moreover, they should give virtually automaticrecognition and enforcement of judgments in civil and commercial matters issued inother States – members to the Convention.

Not only is it the national courts of Member states of the European Union thatapplied the Convention on a regular basis. Indeed, the European Court of Justicehas also delivered preliminary rulings on interpreting the Convention. This rightwas conferred upon the Court by the 1971 Protocol22, thus promoting a moreuniform application and autonomous interpretation of the Convention throughoutMember States. A substantial body of case law exists on the Brussels Convention,from references by the original six Contracting States to the ECJ, and morerecently from references from other Contracting States.23 The Court stressed its

05_REV2_p111_136.qxd 11/16/05 21:32 Page 116

117:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

interpretative role of the Convention in the recent HWS case:24

Only such (autonomous, NR) interpretation (of the concepts of contract and tort in Art. 5 (1) and (3) of the Brussels Convention, NR) is capable ofensuring the uniform application of the Brussels Convention, which is intendedin particular to lay down common rules on jurisdiction for the courts of theContracting States and to strengthen the legal protection of persons establishedin the Community by enabling the claimant to identify easily the court in whichhe may sue and the defendant reasonably to foresee in which court he may besued….(para 20)

The principal objectives of the Convention may be traced through the substan-tial amount of ECJ case law interpreting the Convention. These include:

• determination of international jurisdiction of (national) courts in theEuropean Community;25

• simplification of formalities governing reciprocal enforcement of judgments;26

• procedural provisions for these purposes;27

• avoidance of multiplicity of jurisdictions;28

• prohibition of the English doctrine of “forum non conveniens” where the casehas a closer connection with the courts of a non-Member country, or the prac-tice to issue “anti-suit injunctions” against alleged frivolous litigation in otherMember countries.29

• the need to strengthen the legal protection of the rights of defendants,30

• protection of socially or economically weaker parties.31

The provisions of the Brussels Convention were repeated in the LuganoConvention concluded between the EEC countries and members of the EuropeanFree Trade Association. These have been extended to include Poland.

The well-known international law rule actor sequitur forum rei is the general prin-ciple of jurisdiction of the Brussels Convention.32 This means that a person shouldbe sued in the court of the place where he is domiciled.This rule may be derogatedfrom and a person may be sued in the courts of other States – parties to theConvention only by virtue of the rules on “special jurisdiction” stated in theConvention. These rules state that person may also be sued:

• in the courts of the state where the contract obligation was performed (Art. 5 (1),• where a harmful event has occurred (in matters related to delict) (Art. 5 (3),• where a branch or agency is situated (in matters related to operations of a

branch, Art. 5 (5).In the Kronhofer case,33 the Court insisted on a narrow interpretation of Art. 5

(3) as an exception to the general rule of Art. 2 Brussels Convention. In tort actionsregarding the marketing of financial services, the mere fact that the claimant had its

05_REV2_p111_136.qxd 11/16/05 21:32 Page 117


business seat or its assets in one Member country is not sufficient to constitute the“place where the harmful event occurred”.

Persons who are not nationals of the State in which they are domiciled shall begoverned by the rules of jurisdiction applicable to nationals of that State.34 In addi-tion, parties to the contract may enter into an agreement on jurisdiction, subject toprovisions of Section 6 of the Convention.

The Convention also determines the rules on “exclusive jurisdiction”.This, con-trary to general and special jurisdiction, is linked not to the courts of the Statewhere the party is domiciled but where immovable property is situated, where thecompany has its seat, or where the public register is kept35.The courts, which haveexclusive jurisdiction under the Convention, cannot be excluded from the proceed-ings by an agreement on jurisdiction.

The Convention also contains some rules on protective jurisdiction, underwhich economically weaker parties, such as consumers or employees, may sue in thecourts of their domicile:

• With regard to consumers, the Convention provides for a set of criteriaenabling these persons to enjoy protective provisions, but usually limits them to so-called passive consumers. They have been subject to intensive case law concerning“consumer contracts” in Art. 13 et seq.36

• Two judgements of 20 Jan. 200537 continue earlier case law insisting on astrict interpretation of the special jurisdiction of Art. 13 as an exception to the gen-eral rule “actor sequitur forum rei”. In the case of so called “mixed contracts”, theCourt will apply Art. 13 only in cases where the professional activity to which thecontract is related is only marginal and ancillary. Should the consumer deceive theother side on the true character of the contract – he pretends the contract to bepart of a professional activity even when this is only minor – he has waived his pro-tection and the good-faith contract partner is not subject to the special jurisdictionof Art. 13/14. Art. 13 (1) para (3) always requires that a contract is concluded forthe supply of goods or services. This is not the case, in difference to Gabriel, if thetrader awards to the consumer a “prize” allegedly won by him without being subjectto the ordering of goods.

• With regard to contracts of employment, a special section was added to Art. 5(1) on the occasion of the accession of Spain and Portugal to the Convention. TheCourt referred to the place where the work is actually performed by the employeeas the place where (active or passive) litigation arising out of the employment con-tract should take place, including posted workers. If work is done in several places,than the place where the essential part of the worker’s duties vis-à-vis his employerare in fact performed is decisive.38

Prorogation of jurisdiction by agreement is subject to stricter requirementsaimed at the protection of the weaker party, Art. 15 Brussels Convention.

05_REV2_p111_136.qxd 11/16/05 21:32 Page 118

119:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

It should be noted that, despite its success, the Convention had one inherentflaw.That is, with every round of accession, it had to be ratified again by all MemberStates. This ratification has become ever more time consuming. As an example,Austria, Finland and Sweden acceded to the European Union in 1996. And as lateas in July 1999 the Commission pointed out that the “Brussels Convention, asamended following the accession negotiations with Austria, Finland and Sweden,has not yet entered into force for all the Member states as only a minority of themhave ratified it.”39

2 BRUSSELS REGULATION 44/2001

a. OverviewHowever, such legislation through an international convention remained the onlypossible way until the Amsterdam Treaty introduced Art. 65 (b) EC, which now con-tains provisions on:

measures in the field of judicial cooperation in civil matters having cross-borderimplications, to be taken … promoting the compatibility of the rules applicablein the Member States concerning the conflict of laws and of jurisdiction.

Hence, the private international law and jurisdiction rules in the EuropeanUnion were brought into the context of the First Pillar. This article was used as abasis for adoption of Council Regulation (EC) No 44/2001 of 22 December 2000on jurisdiction and the recognition and enforcement of judgments in civil and com-mercial matters (in the following: Reg. 44/2001).40 The Regulation replaced theConvention as of March 1, 2002, for the then 14 states – Members of the EU. Art.68 of Reg. 44/2001 provides:

[The] Regulation shall, as between the Member States, supersede theBrussels Convention. … In so far as this Regulation replaces the provisionsof the Brussels Convention between Member States, any reference to theConvention shall be understood as a reference to this Regulation.

However, the Brussels Convention continues to apply in relations betweenDenmark and the Member States that are bound by the Regulation41, and to the ter-ritories of the Member States that fall within the territorial scope of the Conventionand which are excluded from this Regulation pursuant to Art. 299 of the Treaty.42

Despite the fact that the Convention ceased to regulate relations between mostof the Member States, it will remain important for the purpose of uniform inter-pretation and application of the Regulation, since “[c]ontinuity between the Brussels

05_REV2_p111_136.qxd 11/16/05 21:32 Page 119


Convention and this Regulation should be ensured.”43 The case law of the ECJ,interpreting provisions of the Brussels Convention that were transferred unchangedinto the Regulation, should remain a valid source for interpreting the provisions ofthe Regulation. For this reason, the case law of the ECJ44 as well as the OfficialReports on the Convention45 have retained their importance.

b. Consumer contractsThe Regulation for the most part follows both the structure and the provisions ofthe Brussels Convention. One of the key changes in the Regulation compared tothe Convention is the new approach towards marketing activities in B2C (busi-ness to consumer) relations. According to Art. 13 (1) lit. c) of the Convention,the right of the consumer to sue the supplier in the consumer’s country of domi-cile was subject to the existence of advertising or a specific invitation addressedto the consumer. Moreover, the consumer should have taken the necessary stepsto conclude the contract in that state. Art. 15 (1) lit c) of Regulation 44/2001replaced these two conditions with one: the consumer may sue the company ifthe company:

by any means, directs such activities to that Member State or several Statesincluding that Member State.

This provision has aroused intense debate with regard to e-commerce, since itmay be interpreted in such a way that the mere accessibility of the website of acompany situated in one Member State by a consumer domiciled in anotherMember State may give such consumer the right to sue the company in the con-sumer’s domicile – a result which makes marketing in e-commerce subject to dif-ferent and diverging jurisdictions. Such a rule may on the other hand encourage theestablishment of alternative dispute settlement (ADR) mechanisms, which is one ofthe aims of the directive on electronic commerce. This question will not be devel-oped in the present context.46

c. Employment contractsWith regard to employment contracts, a new section 5 contains special rules onjurisdiction.47 This gives the employee the choice to sue the employer:48

• in the courts of domicile of the employer;• in the courts for the place where the employee habitually carries out his work

or in the courts for the last place where he did so;• if the employee does not or did not habitually carry out his work in any one

country, in the courts for the place where the business which engaged the employ-ee is or was situated.

05_REV2_p111_136.qxd 11/16/05 21:32 Page 120

121:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

On the other hand, an employer may bring proceedings only in the courts of theMember State where the employee is domiciled.49

d. Other issuesArt. 60 of Reg. 44/2001 provides for an autonomous definition of the seat of legalpersons, whereas the Convention had left this issue to be determined by the rules ofthe court in which jurisdiction is exercised. The Regulation provides three alterna-tive criteria to define domicile of legal persons:

• the statutory seat,• the central administration, or • the principal place of business.These criteria correspond to those listed in the Chapter of the EC Treaty con-

cerned with the right of establishment of companies in the European Community.50

Another important change gives an autonomous definition to the place of per-formance of the contract. Art. 5 (1) lit b) of Reg. 44/2001 provides that in the caseof sale of goods this place is the place where the goods were delivered or should havebeen delivered; and in the case of provision of services – the place where the serv-ices were provided or should have been provided. The purpose of this modificationis, similarly as described above, “to remedy the shortcomings of applying the rulesof private international law of the State whose courts are seized.”51 However, prob-lems may still remain for the claimant in proving the place where services, such asconsultancy services, should have been provided.

The Regulation has amended the rule on jurisdiction in tort claims. The defen-dant may be sued not only in the courts of the place where the harmful event hasalready occurred, but also of the place where it may occur.Thus, litigants are given aright to sue for preventive measures via injunctions.This was first recognized in theHenkel case concerning cross-border group actions.52

Art. 6 of Reg. 44/2001 provides that an action may be brought against a defen-dant in the court of a co-defendant only in cases when the claims are so closely con-nected that separate proceedings would risk irreconcilable judgments.Thus, the rul-ing of the ECJ in the Kalfelis case53 was transposed into a legislative provision.

An important innovation is made to Section 7 related to prorogation of juris-diction. An agreement on jurisdiction may be concluded in electronic form.54

However, the restrictive rules on jurisdiction clauses in consumer contracts have notbeen changed55. The question remains how they can be coordinated with the caselaw of the ECJ on jurisdiction clauses in standard contract terms (supra I 3). InOceano56, the Court did not even mention this problem.

Rules on recognition and enforcement of judgments have been changed so as tomake recognition virtually automatic, and simplifying the obtaining of an enforcementdeclaration. Courts asking for enforcement declarations will no longer be able to raise

05_REV2_p111_136.qxd 11/16/05 21:32 Page 121


grounds for non-recognition on their own motion.57 However, the claimant still hasto comply with national procedure rules in order to obtain a declaration that the judg-ment is enforceable.Thus, the value of automatic recognition may be reduced.

III INDIRECT PROTECTION VIA THE REFERENCE PROCEDURE

1 ORIGINAL OBJECTIVE: UNIFORMITY OF COMMUNITY LAW

The most important element in protecting individual rights and insisting on ade-quate remedies has been the reference procedure58 even though, paradoxically, thisdoes not allow direct access of individuals to European courts. It was originallymeant to be an interim procedure by which courts of law of the Member countriescould ask the ECJ for preliminary rulings on questions of validity and interpretationof Community law.With the exception of courts against whose decisions there is noremedy under national law - which have an obligation to refer59 - the national courthas complete discretion whether to use the reference procedure or not. Therefore,it was not individual protection but uniformity of Community law that was the orig-inal objective of the reference procedure.

This perspective can be seen by looking at two important decisions of the eight-ies. In CILFIT60 the ECJ wrote that Art. 177:

does not constitute a means of redress available to the parties (para 9).

The Court insisted that the reference procedure is based on cooperation. Thenational courts61 enjoy full discretion as to whether to refer a case to the ECJ.Wherethe outcome of a case does not depend on an interpretation of Community law, wherethere has already been a ruling of the ECJ, or where the meaning of Community law isclear (acte clair doctrine), there is no obligation to refer. But the Court made an impor-tant qualification: acte clair does not depend on the discretion of the judex a quo, but it:

must be convinced that the matter is equally obvious to the courts of theother Member States and to the Court of Justice (para 16).

This later requirement is of course difficult to fulfil, especially with 15 currentand 25 future jurisdictions.The Court added several criteria on when this possibil-ity would theoretically exist, always keeping in mind the peculiarity of Communitylaw and its concepts, the different languages used which have equal force of law, andthe context in which Community law must be interpreted. These requirementseffectively limit frequent application of the acte-clair doctrine and insist on the pri-ority of the ECJ in interpreting Community law.

05_REV2_p111_136.qxd 11/16/05 21:32 2

123:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

A similar spirit of “exclusivity” can be seen in the later Foto Frost case62.The pre-liminary question concerned the power of a national court to invalidate aCommunity measure. The Court insisted that Member State courts may judge onthe validity of a Community act in a positive way, but they:

do not have the power to declare acts of the Community institutions invalid (para 15).

This is due to the “necessary coherence of the system of judicial protectionestablished by the Treaty”, which is based upon a clear division of powers and com-petences. Later case law has clarified the scope of the reference procedure in theinterest of uniformity and coherence of Community law:

• Only courts of law, and not (private) arbitration, or consumer complaint tri-bunals whose jurisdiction is not mandatory, may refer a case to the ECJ;63 however,if the arbitration award is subject to judicial scrutiny on public policy grounds, thereference procedure is available.64

• The court must fulfill judicial, not administrative, functions, as in cases con-cerning the registration of a company or a commercial agent.65

• The questions put forward must not merely be hypothetical but have a genuinerelevance to the case at hand.66

In general, the ECJ allows a broad margin of discretion to Member State courtsto decide on the relevance, on the questions posed, and on the potential applicationto the specific case at hand. It is not necessary that the date for implementation ofthe directive should have lapsed. Indeed, early reference may even be necessary inorder to allow adequate judicial protection, which is not possible by a direct actionchallenging the directive.67 The national courts may even ask preliminary questionsin cases where the applicable law has not been enacted, in doing so fulfilling a dutyof implementation, but using the same or at least similar terminology in the inter-est of harmonization of national with Community law.68

These cases make clear that the Court insists on its final say to interpret and itsmonopoly to invalidate Community law in the interest of its uniform application. Itsdecisions in the reference procedure therefore have a de facto stare decisis authority.It is only the Court itself (or the Community legislator) that can “overrule” an inter-pretation given by the Court.

2 THE NEW FUNCTION OF THE REFERENCE PROCEDURE: (INDIRECT) INDIVIDUAL

RIGHTS PROTECTION

In the meantime, the second function of the reference procedure has become clear-er, owing to limited direct access by individuals to European courts (infra IV). Thebasic approach, as recognized by the Court, describes a decentralized three step pro-cedure of judicial protection of individual rights in the Union:

05_REV2_p111_136.qxd 11/16/05 21:32 Page 123


• The first and decisive step is taken by the national court system. This mustmeet the requirements of effective protection, as defined by the Court. It includesthe grant of effective remedies as obligation de moyens.

• The Court may – and, in those instances against whose decisions there is nojudicial remedy, must – be asked to give a binding ruling on the interpretation orvalidity of a question of Community law, insofar as it is relevant for the decision ofthe case; merely “hypothetical” questions should not be referred to the ECJ.

• In a third step, the procedure is turned back to the national judex a quo, whichhas to apply the Court ruling to the individual case before it; the ECJ is not allowedto decide the particular case, even though it has given such precise rulings in somecases that the national court could not decide otherwise.69

In this decentralized system, it is really the national judge, and not the ECJor the CFI, which protects Community rights under equal conditions as nation-al rights. The national judge becomes the European judge.

These two functions of the reference procedure may conflict in cases wherea speedy remedy is sought. If the Court of Justice has exclusive authority toannul a Community act that forms the basis for a Member State measure, a finaldecision on the validity of the contested Community measure under the refer-ence procedure would now take about 2 years. Thus, no speedy remedy wouldthen be possible.70 On the other hand, if the national court were allowed to setaside the application of the Community measure, this would infringe the divi-sion of competences as defined in Foto Frost, and the uniformity of Communitylaw, to the unilateral benefit of individual rights protection. In Zuckerfabrik71,the Court was asked to balance the interests of a party to proceedings in rapidprotection against a presumably illegal Community measure violating its rights,with the interests of the Community in coherence and uniform application ofEC law under the final responsibility of the ECJ. The Court allowed the nation-al court to suspend enforcement in order to protect individual rights under thefollowing conditions:

• The national court must have serious doubts as to the validity of theCommunity regulation on which the contested administrative measure is based.

• The national court must refer the question of validity of the Community regula-tion at issue to the ECJ.

• The grant of relief must be subject to uniform conditions in all Member States;therefore, a balancing test is required between the Community interest in main-taining the regulation and the individual interest in suspending it.

• The national court must take due account of ECJ case law.72

However, the national court is not empowered to order positive measuresthat only a Community institution may take.73

It is the reference procedure through which the “great developments” of

05_REV2_p111_136.qxd 11/16/05 21:32 Page 124

125:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

Community law - such as direct effect, supremacy, proportionality, state liabili-ty for infringement of Community rights - have been transformed from animperfect and incomplete legal order to a coherent system of judicial protectionand control. This simple fact shows its inherent potential for the protection ofindividual rights, even though the individual is in fact denied an independentright of standing. A violation of the duty to refer may therefore provoke state lia-bility if the breach has been sufficiently serious and a causal link can be shownbetween the violation of the duty to refer and the damage. 74

3 PROTECTION AGAINST DIRECTIVES

It is not yet clear how the Zuckerfabrik doctrine functions in cases involving pro-tection against directives. Under Community law, directives may take verticaldirect effect against the State in favor of individuals, but may not impose obli-gations upon individuals. However, directives may be used for interpretationpurposes, thereby indirectly extending existing obligations, or even imposingnew ones. Yet from a formal point of view, only the implementing state meas-ures will have a mandatory effect on the individual. On the other hand, theMember State is bound by Community law to enforce a directive under the con-ditions set out therein, in order to avoid state liability under the governancerules. The mere existence of a directive to be implemented within a specifiedtime frame will have a certain anticipatory effect on the legal position of theindividual, on their business strategies, opportunities, and operational planning.Does the individual or undertaking fearing an infringement of its supposedrights by a foreseeable implementation of a directive have a remedy against thedirective itself, or does it have to wait until an implementing measure (such asadministrative or criminal proceedings) is directed against it, only then con-testing the validity of the directive under the conditions of Foto Frost via a ref-erence procedure?

Since, as we shall see, the individual has no direct access to Communityjurisdiction for the protection of its rights, even if they have a fundamentalrights quality, it is up to the national courts to allow for adequate protectionbefore implementation of the directive. The English courts have construed pre-ventive action against the threat of an implementing measure if the national leg-islator or regulator had no choice of action.75 A similar remedy does not existin other jurisdictions.

It can be argued that the national courts are under a requirement to extendstanding under their obligation to provide effective remedies. Their “proceduralautonomy” is subject to the principle of effective judicial protection and control.This includes the creation of new remedies which so far had not existed undernational law.76

05_REV2_p111_136.qxd 11/16/05 21:32 Page 125


IV LIMITED DIRECT ACCESS TO EUROPEAN JURISDICTIONS: ART. 230 (4) EC

1 ABSENCE OF A CONSTITUTIONAL COMPLAINT IN EU LAW AGAINST LEGISLATIVE ACTS

Such a distribution of responsibilities as described explains why specific Communitylaw procedures are only available if individuals are directly and individually concernedby Community measures.77 The wording seems to exclude any protection againstlegislative measures of the Community, be they regulations or directives. The indi-vidual has to seek protection of its alleged rights before national courts. In mattersof Community law these act, as we have seen, as Community courts and may poten-tially have to refer a case to the ECJ via the reference procedure.

This is true even in cases where the individual claims a violation of fundamentalrights. For Community law, unlike many Member State laws, has not yet developeda constitutional complaint system against legislative measures. In this way, it is farbehind the standard of European human rights law and the constitutional traditionscommon to many Member States (with the exception of some countries, such as theUK, France, and Sweden). Art. 46 lit. d) EU allows protection of fundamental rightsunder Art. 6 (2) EU against actions of Community institutions only “insofar as theCourt has jurisdiction”.

The Charter of Fundamental Rights of the EU has not changed this distributionof competences. It does not establish any new powers or tasks for the Communityor the Union, nor does it modify the powers and tasks defined by the Treaties.78 Thisamounts to a refusal to grant new judicial remedies against violations of the Charter.

2 THE LIMITED SCOPE OF DIRECT ACTIONS UNDER COMMUNITY LAW

Art. 230 (4) EC - as the basic norm for direct actions of individuals - distinguishesthree types of Community measures that may be contested before Community juris-dictions.These are now the Court of First Instance, with possible appeal to the ECJ:

• a decision addressed to a (natural or legal) person;• a decision not addressed to that person but to another person and which is of

direct and individual concern to that person;• a decision in the form of a regulation being of direct and individual concern to

another person.This numerus clausus of Community measures against which direct action by an

individual is possible has a number of ambiguities.These have given rise to an abun-dant and somewhat conflicting case law.79 As a starting point it should be kept inmind that direct action under Community law has the character of an administrativelaw remedy. It seems completely to exclude actions against general, namely legisla-tive, measures. Only under the qualified circumstances of direct and individual con-cern may a regulation - which according to the wording of the Treaty must be regard-ed in substance as a decision – be challenged. Directives seem to be completely

05_REV2_p111_136.qxd 11/16/05 21:32 Page 126

127:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

excluded from Community jurisdiction.80 A brief look at Court practice will beconcerned with only whether individual, or also group or general interest actions,are allowed under Community law.

3 REGULATIONS OF DIRECT AND INDIVIDUAL CONCERN

Regulations under Community law are hybrid measures. According to Art. 249 (2)they have “general application” and are “directly applicable”. General applicationseems to indicate their legislative character, thereby excluding individual concern,even if they are able to directly confer rights and impose obligations on individuals.

The case law of the Court was thus concerned with singling out those regula-tions that are of individual concern to persons directly subjected to them. The for-mula which had been developed by the famous Plaumann case of 196381 demandsthat the measure in question affects natural or legal persons:

by reason of certain attributes which are peculiar to them or by reason of legalor factual circumstances in which they are differentiated from all other personsand by virtue of these factors distinguishes them individually just as in the caseof the person addressed.

The Court seems to use a test based on equal treatment.That is, in normal circum-stances, a measure of legislative character, like a regulation, treats all potentialaddressees similarly. Since everybody in the sense of “quivis ex populo” is concerned,nobody is entitled to contest the measure because of its general applicability. However,there may be cases - due to legal or factual circumstances - where one individual is sin-gled out from the general public.Then this individual – and only that individual - is enti-tled to direct action. It is not important whether the legislative measure poses a par-ticular hardship on him. Later case law was concerned with defining certain types ofsituations where this individual concern could be established under equality criteria:

• EC law may require that the effects of a measure to certain persons be par-ticularly taken into account. That is, even if the measure is of general character inthe form of a regulation, it is still of individual concern to those persons whomCommunity law aims to protect, such as importers or exporters of agriculturalproducts forming a “closed class”.82

• A Community regulation is only adopted after certain persons or groupshave had their right to a hearing, in particular in anti-dumping proceedings, butthese rights have been violated.83

• Certain factual situations are of specific concern to individuals, for exam-ple to independent importers of products that have to pay a particular anti-dumping tariff,84 or to the proprietor of a graphic trade mark taken away by aCommunity regulation.85

05_REV2_p111_136.qxd 11/16/05 21:32 Page 127


It appears from this overview that Community courts enjoy a certain amount ofdiscretion whether to admit an action or not, a fact that makes any prediction as tothe admissibility of an action difficult. Such legal insecurity violates the principle ofeffective judicial protection.

The situation is particularly unsatisfactory with regard to group actions, whichCommunity law prescribes the Member States to accept in several areas such as non-discrimination, but does not seem to be willing to allow its own plaintiffs.The Courthas repeatedly insisted that for a group action to be admissible it is not sufficient thatthe members of the group are individually concerned:86

... moreover one cannot accept the principle that an association, in its capacityas the representative of a category of businessmen, could be individuallyconcerned by a measure affecting the general interests of that category. Such a principle would result in the grouping, under the heading of a single legalperson, of the interests properly attributed to the members of a category, whohave been affected as individuals by genuine regulations, and would derogatefrom the system of the treaty which allows applications for annulment byprivate individuals only of decisions which have been addressed to them or of acts which affect them in a similar matter.

Only if the group itself (for example, a producers’ or consumers’ association) isindividually concerned does it have a right to action.87 This may be the case if their“procedural participation right” has been violated.88 But in general the Court hasbeen hostile to group actions.89

Community jurisdictions have discussed whether standing should be extendedin particular by having regard to fundamental rights developments. In its Jégo-Quéréjudgment of 3.5.2002,90 the Court of First Instance referred to Art. 47 of theECHR, which grants the right to an effective legal remedy. As discussed above, theexisting system of Community law remedies, in particular the reference procedure,does not allow an effective remedy. The same is true of the potentiality of theinjured individual to receive compensation91. Therefore, the requirement of “indi-vidual concern” should be widened to cases where a Community law provisiondirectly curtails rights or imposes obligations (para 51 of judgment).

In his opinion of 21 March 200292 on Union de pequeños agricultores (UPA), con-cerning a group action of an association of small agricultural producers challenginga regulation which substantially reduced their production quotas of olive oil, AGJacobs critically analyzed existing case law and proposed a more open and flexiblesolution to the criteria of “individual concern”. He argued for the constitutionalimportance of effective judicial protection and on the evolution of Community lawin the direction of governance and democratic legitimacy. He also referred to prior

05_REV2_p111_136.qxd 11/16/05 21:32 Page 128

129:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

case law of the ECJ, acknowledging an evolutionary interpretation of Art. 230 (4)EC. The criteria proposed by him suggest that an:

applicant is individually concerned by a Community measure where themeasure has, or is liable to have, a substantial adverse effect (italics NR) on his interest (paras 60, 102).

However, it must be doubted whether the new criterion of substantiality insteadof equality is of much help to Community courts and their parties in determiningadmissibility of an action. Only after having reviewed the substance of a case willone know whether or not a party is substantially concerned by a Community regu-lation. Substantiality can thereby only be determined ex post, not ex ante.

In its decision of 25 July 2002, the Court was not convinced of the new criteriaproposed by AG Jacobs. It insisted on the one hand on the right of effective judicialprotection, but on the other hand made the Member States responsible for grantingit (para 41). Member States, in their duty of loyal co-operation under Art. 10 EC are:

required, so far as possible, to interpret and apply national procedural rulesgoverning the exercise of rights of action in a way that enables natural and legalpersons to challenge before the courts the legality of any decision or othernational measure relative to the application to them of a Community act ofgeneral application, by pleading the invalidity of such an act (para 42).

The Court no more and no less requires Member States to institute a quasi-con-stitutional complaint mechanism against Community legislative acts, always keepingin mind that the final decision as to illegality remains within Community jurisdic-tion. Within such a system of judicial control, the Court will review the constitu-tionality of a Community measure.93

The Court found no justification for extending standing beyond existing case law.It referred this question to the Member States as “Masters of the Treaty”. In turn, theyare only entitled to reform the system currently in force by amending the Treaty.

The judgment of the Court can be seen as an attempt to put the responsibility foreffective judicial protection back to the Member States.They - not the Community -have to extend their judicial mechanisms. Direct action will remain as before a main-ly administrative remedy.The quasi-constitutional remedy against legislative acts is tobe provided by Member States within the framework of the reference procedure.

Unfortunately, however, this shifting back of responsibilities does not settle themain problem posed by the Court in its insistence on division of responsibilitiesbetween Community and Member State courts, and its exclusive power to annulCommunity acts. That is, Member State courts are competent to decide on

05_REV2_p111_136.qxd 11/16/05 21:32 Page 129


Community law only indirectly via implementing Community measures, and notdirectly via allowing an action against a Community regulation or decision, as hasbeen correctly pointed out by AG Jacobs.94 In cases where a regulation or decisionwith substantial effects on third persons is self-executing and does not require addi-tional Member State implementation measures, judicial protection is in effectdenied, contrary to the principles declared by the Court.

4 PROTECTION AGAINST DIRECTIVES

Directives are not mentioned among the acts to be challenged under Art. 230 (4).Therefore, by argumentum e contrario the Court has persistently held that there is nodirect action against them.95 As has been held by the Court of First Instance andupheld on appeal by the ECJ:

(T)he justification for that exclusion (of directives from judicial review - NR)lies in the fact that, in the case of directives, the judicial protection ofindividuals is duly and sufficiently assured by the national courts, whichreview the transposition of directives into the domestic law of the variousMember States.

Furthermore, even supposing that it were possible – contrary to the wordingof the fourth paragraph of Art. 173 of the Treaty – to treat directives asregulations in order to allow proceedings against a decision ‘in the form of’ adirective, the directive at issue neither constitutes a ‘disguised’ decision norcontains any specific provision which has the character of an individualdecision. On the contrary, it is a normative measure of general application(paras 17-18).

This rather formal argument could be supported by the fact that directives donot allow for a direct imposition of duties upon individuals. Therefore, they cannotbe of “direct concern” to them. As a result, it not necessary to question their “indi-vidual” concern.

However, this argument can be challenged from two directions:• Certain directives leave to Member States such a narrow margin of discretion

that they impose de facto obligations upon individuals even before enactment ofimplementing measures; individuals have to adopt their business plans and legalaction in expectation of implementation.

• Other directives may in reality be disguised decisions96 just like regulations,and therefore fulfil the criteria of direct and individual concern.

In the actions brought by tobacco manufacturers and advertisers against Dir.98/43,97 the CFI was not convinced of their direct and individual concern. It insisted

05_REV2_p111_136.qxd 11/16/05 21:32 Page 130

131:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

on a formal reading of direct effect, which by definition is not possible with regard toimposing obligations upon individuals. Again it is left to the Member States to providefor adequate remedies. The individual injured by a measure implementing a (poten-tially illegal) directive may claim compensation as a remedy of last resort.98 However,such a conclusion is not satisfactory, because it does not take into account the preven-tive effect of judicial protection, and gives a remedy only when “it is too late”.99

5 NEW PROPOSALS TO EXTEND STANDING IN THE DRAFT CONSTITUTION

The Draft Treaty on a Constitution for Europe has proposed an Art. III-365 (4)which will read:

Any natural or legal person may, under the same conditions, instituteproceedings against an act addresses to that person or which is of direct andindividual concern to him or her, and against a regulatory act which is of directconcern to him or her and does not entail implementing procedures (italics NR).

This amendment will solve the problem left by the UPA case where a regulationor some other Community act did not need implementing measures and thereforecould not be attacked before a national court.The decisive criteria will be direct con-cern; individual concern is not necessary any more. Therefore, it will not allowdirect actions against directives.

NOTAS

1 V. Gerven, CMLRev 2000, 501 at 521.

2 An excellent overview of the development of the case law is given by Tridimas, The General Principles ofCommunity Law, 1999 at 279-290.

3 Case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) vGeorges Heylens and others, [1987] ECR 4097.

4 For details cf. Tridimas at 279-290.

5 Case 222/84 Marguerite Johnston v Chief Constable of Royal Ulster Constabulary [1986] ECR 1651.

6 Case C-185/97 Belinda Jane Coote v Granada Hospitality Ltd. [1998] ECR I-5199.

7 Case C-361/88 Commission v Germany [1991] ECR I-2567 concerning environmental protection.

: ARTIGO CONVIDADO

05_REV2_p111_136.qxd 11/16/05 21:32 Page 131


8 Case C-158/80 Rewe-Handelsgesellschaft Nord mbH et Rewe-Markt Steffen v Hauptzollamt Kiel [1981]ECR 1805.

9 Case C-97/91 Oleificio Borelli SpA v Commission, [1992] I-6313.

10 cf. the discussion in v. Gerven at 509-521.

11 Cases C-430-432/93 Van Schijndel and Van Veen v Stichting Pensioenfonds [1995] ECR I-4705 at para 21.

12 V. Gerven loc cit 526-533.

13 Case C-327/00 Santex SpA v Unità Socio Sanitaria Locale [2003] ECR I-1877.

14 Case C-473/00 Cofidis v Jean-Louis Fredout [2002] ECR I-10875.

15 Case C-261/95 Palmisani v INPS [1997] ECR I-4025: comments by Craig-de Burca loc it at p. 269/270..

16 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/29.

17 Joined cases C-240-244/98 Oceano Grupo editorial v Rocio Murciano Quintero et al. [2000] ECR I-4491; comment Stuyck, CMLRev. 2001, 719.

18 Micklitz in: Reich/Micklitz, Europäisches Verbraucherrecht, para 13.22 insists that the words in italicswere not translated in the German version and caused some confusion about the ambit and scope of the judgment.

19 [2003] OJ L 26/41

20 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercialmatters [1998] OJ C 27/1 (consolidated version).

21 O. Remien, CMLRev 2001 at 55.

22 Protocol on the interpretation of the 1968 Convention by the Court of Justice [1998] OJ C 27/28.

23 J.J. Fawcett, P. North, Cheshire and North’s Private International Law, 13th edition, 1999, p. 184.

24 Case C-334/00 Fonderie Officine Meccaniche Tacconi SpA v Heinrich Wagner Sinto Maschinenfabrik(HWS) [2002] ECR I-7357.

25 Case 14/76 A. De Bloos, SPRL v Société en comandite par actions Boyer [1976] ECR 1497.

26 Case 133/78 Gourdain v Nadler [1979] ECR 733 at para. 3.

27 Case 48/84 Spitzley v Sommer Exploitation SA [1985] ECR 787 at para. 21.

28 Case 14/76 supra note 196

29 Case C-281/02 Andrew Owusu v N.B.Jackson et al [2005] ECR I-(1.3.2005), C-159/02 Gregory PaulTurner v Felix Fareed IsmailGrovit et al [2004] ECR I-(27.4.2004)

30 Case 125/79 Denilauer v SNC Couchet Frères [1980] ECR 1553 at para. 13.

31 Case 150/77, Bertrand v Paul Ott KG [1978] ECR 1431 at para 21; 201/82 Gerling Konzern SpezialeKreditversicherungs-AG v Amministrazione del Tesoro dello Stato [1983] ECR 2503 at para. 17.

32 Art. 2 of the Convention.

05_REV2_p111_136.qxd 11/16/05 21:32 Page 132

133:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

33 Case C-168/02 Rudolf Kronhofer v. Marianne Maier et al. [2004] ECR I-(10 June 2004)



36 For a recent case C-96/00 Gabriel [2002] ECR I-6367; for details Reich/Micklitz, EuropäischesVerbraucherrecht, paras 31.2-31.14.

37 C-464/01 Johann Gruber v Bay Wa AG and C-27/02 Petra Engler v Janus Versand GmbH, [2005] ECR I-

38 Cf. Case C-383/95 Petrus Wilhelmus Rutten v Cross Medical Ltd. [1997] ECR I-57; C-437/00 GiuliaPugliese v. Finmeccanica SpA [2003] ECR I-(0000) judgment of 10 April 2003.

39 COM (1999) 348 final of 14 July 1999 at 2.1.

40 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforce-ment of judgments in civil and commercial matters [2001] OJ L 12.

41 Recital 21 of the Regulation.



44 For a recent example cf. case C-167/00 Verein für Konsumenteninformation v Karl Heinz Henkel [2002] ECRI-8111 concerning the question on whether Art. 5 (3) is also applicable to injunctions to prevent an illegal act, whichthe ECJ answered in the affirmative by referring to the amended text in Art. 5(3) of Reg. 44/2001.

45 Schlosser Report, [1979] OJ C 59, Jenard Report [1979] OJ C 59; the Evrigenis and Kerameus Report[1986] OJ C 298 ; The Almeida Cruz, Desanes Real, Jenard Report [1990] OJ C 189.

46 Reich/Micklitz, Europäisches Verbraucherrecht, 4. A. at paras 31.5; 32.12.

47 Art. 19 of the Regulation.


49 Art. 20 (1) of of the Regulation.

50 Art. 48 EC.

51 Proposal for a Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgmentsin Civil and Commercial Matters, [1999] OJ C 376 (1999) at p. 17.

52 Case C-167/00, supra note 212 which comes to the same result under the Brussels Convention, thus min-imising the changes brought about by Reg. 44/2001.

53 See Case 189/97 Kalfelis v. Banque Schröder ECR [1988] 5565.

54 Art. 23 of the Regulation .


56 Cases C-240-244/98; comment by Pfeiffer, ZEuP 2003, 141 at 153.


05_REV2_p111_136.qxd 11/16/05 21:32 Page 133


58 Under Art. 234 EC.

59 Para 3 of Art. 234 EC.

60 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, [1982] ECR 3415.

61 Including those mentioned in para 3 of Art. 234 EC.

62 Case 314/85 Foto-Frost v HZA LübeckOst [1987] ECR 4199.

63 Case 102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG& Co. KG [1982] ECR 1095; C-125/04 Guy Denuit et al v Transorient – Mosaique Voyages et Culture SA, [2005] ECRI-(27.1.2005)..

64 Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV. [1999] ECR I-3055.

65 Case C-111/94 Job Centre Coop. ARL. [1995] ECR I-3361 at para 11.

66 Case 244/80 Pasquale Foglia v Mariella Novello [1981] ECR 3045 at para 16.

67 Case C-491/01 The Queen v Secretary of State for health ex parte: British American Tobacco (Investments)Ltd. et al. [2002] ECR I-11453 at para 40.

68 Cases C-297/88 + 197/89 Dzodzi v Belgium [1990] ECR I-3763 at para 36; C-7/97 Oscar Bronner GmbH& Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG.[1998] ECR I-7791.

69 Cf. as an example case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Mars GmbH[1995] ECR I-1923.

70 An expedited procedure is now available in urgent and exceptional cases under Art. 62a of the Rules ofProcedure of the Court..

71 Joined cases C-143/88 and 92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Ithehoe andZuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR I-415.

72 Case C 465/93 Atlanta Fruchthandelsgesellschaft et al v Bundesamt für Ernährung und Forstwirtscahft [1995]ECR I-3761 at para 46.

73 Case C-68/95 T. Port GmbH & Co. KG v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065.

74 Cf. opinion of AG Leger of 8.4.2003 in case C-224/01 G. Köbler v. Republic of Austria, [2003] ECR I-.75 Case C-74/99 The Queen v Secretary of State for Health and others, ex parte Imperial Tobacco Ltd and Others

[2000] ECR I-8599 re tobacco litigation.

76 V. Gerven at 522-526.

77 Per Art. 230 (4) EC.

78 According to Art. 51 Charter.

79 For details cf. Arnull, CMLRev 2001, 7; Reich, in: Micklitz/Reich, Public Interest Litigation, 1996 at 12-16.

80 Under Art. 230 (4) EC.

81 Case 25/62 Plaumann & Co. v Commission [1963] ECR 95.

82 Case 11/82 SA Piraiki-Patraiki and others v Commission[1985] 207; C-152/88 Sofrimport SARL vCommission [1990] ECR I-2477; C-451/98 Antillean Rice Mills NV v Council [2001] ECR I-8949; for further detailsArnull at 31-41.

05_REV2_p111_136.qxd 11/16/05 21:32 Page 134

135:V. 1 N. 2 | P. 111 - 136 | JUN-DEZ 20052

83 Case 264/82 Timex Corporation v Council and Commission [1985] ECR 849.

84 Case C-358/89 Extramet Industrie SA v Council [1991] ECR I-2501.

85 Case C-309/89 Codorniú v Council [1994] ECR I-1853.

86 Case 16 + 17/62 Confédération nationale des producteurs de fruits et légumes and others v Council [1962]471 at 477.

87 Under Art. 230 (4) EC.

88 Reich in: Micklitz/Reich at p. 15.

89 Case 246/81 Nicholas William, Lord Bethell, v Commission [1982] 2277; C-321/95P Stichting GreenpeaceCouncil (Greenpeace International) and Others v Commission [1998] I-1651; for a broader discussion cf. the contri-butions of Reich, Micklitz, Dauses, Gormley, Weatherill, Wenig, Nettesheim, Krämer, Betlem and Christianos, in:Micklitz/Reich passim.

90 Case T-177/01 Jégo-Quéré & Cie SA v Commission of the European Communities [2002] ECR II-2365: TheECJ set aside the Jégo-Quéré-judgment of the CFI, case C-263/02P [2004] ECR I-(1.4.2004) because “such an inter-pretation has the effect of removing all meaning from the requirement of individual concern set out in the fourth para-graph of Art. 230 EC” (para 37).

91 under Art. 288 (2) EC.

92 Case C-50/00P Unión de pequeños agricultores v Council [2002] ECR I-6677.

93 According to Art. 46 lit. d) EU.

94 paras 41-48 of his opinion.

95 Case T-99/94 Asociación Espanola de Empresas de la Carne v Council [1994] ECR II-871, upheld on appealCase C-10/95P [1995] ECR I-4149.

96 In the sense of Art. 230 (4) EC.

97 For details cf. Reich, FS Winter, 2003, 152.

98 Case T-172, 175-177/98 Salamander AG, Una Film "City Revue" GmbH, Alma Media Group Advertising SA &Co. Partnership, Panel Two and Four Advertising SA & Co., Rythmos Outdoor Advertising SA, Media Center AdvertisingSA, Zino Davidoff SA and Davidoff & Cie SA v European Parliament and Council [2000] ECR II-2487 at para 78.

99 Cf. the critique by Arnull at 50; Nettesheim, Juristenzeitung 2002, 928 at 934.

Norbert ReichPROFESSOR DA UNIVERSIDADE DE BREMEN (ALEMANHA),

FACULDADE DE DIREITO

EX-REITOR DA FACULDADE DE DIREITO DE RIGA (LETÔNIA)

05_REV2_p111_136.qxd 11/16/05 21:32 Page 135

05_REV2_p111_136.qxd 11/16/05 21:32 Page 136

JUDICIAL PROTECTION IN THE EU - FGV DIREITO...

Documents

Transcript of JUDICIAL PROTECTION IN THE EU - FGV DIREITO...